bridget makes stuff | managed expectations

Bodies of Artwork: a very chill blog about tattoos and copyright

January 1, 2014

I’ve been promising/threatening to post some of my law analysis for some time now. For reasons that escape me, people are really interested in what I have to say about union law. So, in an effort to avoid giving the people what they want, my paper about tattoos is going to serve as a teaser.

In theory, I happen to have nailed it, as far as getting a tattoo goes. All my work is sourced from my own drawings, letterings, and handwriting – or copies I’ve made of work in the public domain. The one exception off the bat is that I’m pretty sure my little sister and I could each claim copyright in the other person’s tattoo, since we were responsible for creating the text that now graces the other person’s arm/back.

Where I really screwed this up was in the not-keeping-my-releases department. I have no idea if I handed over my copyright to the artists when they created the transfers for me.

There’s no relief for me in this paper, though there may be some in my filing cabinet. Over the next few posts, the focus is on how the entertainment industry is learning how to interact with other people’s art.

That breaks down into these parts:

-General case law relating to tattoos. Like much of my life, this mostly involves video games and football.

-Bridget Woodbury (and maybe some back-up experts) analyzing the hell out of all of it.

I’m leaving academic citations in the excerpts and I’ll throw that information up with the analysis.

GENERAL CASE LAW RELATING TO TATTOOS: LIKE MUCH OF MY LIFE, THIS MOSTLY INVOLVES VIDEO GAMES AND FOOTBALL

Tattoos have existed in their present form for 5,200 years (Lineberry). In modern Western society, the term body art is synonymous with tattooing, which indicates a huge shift in status for permanent body modification and, as a result, to a shift in the conversation about who owns what. Copyright law, with the relevant clauses in their present form, had been around for a less impressive 143 years. Despite the long tradition of tats, ownership, and lawsuits that makes America great, this is a pretty new subject of legal speculation.The first tattoo artist to seek an answer to this question was Christopher Escobedo who, in 2009, filed suit against THQ, a company that publishes video games. THQ published a game modeled around the sport of Ultimate Fighting called UFC Undisputed. It included a particular fighter, who had licensed his image, including his tattoo, to THQ. Escobedo does not believe the tattoo was the fighter’s to license and, unfortunately, THQ filed for bankruptcy before a court could address the matter (Gardner).

When video-game maker Electronic Arts released games in 2012 related to the National Football League, they were subject to a lawsuit from a tattoo artist as well (Boudway). While this case was not pursued to completion, it did result in the National Football League Players Association issuing the following advice to its members: get a waiver or a license (Boudway). Assistant executive director of external affairs for the NFLPA, George Atallah, says that they are encouraging players to seek protection from infringement suits regardless of their relationship with their tattoo artists and regardless of any legal merits of suits of this kind (Boudway). According to Boudway,

Getting a tattoo probably doesn’t mean you can never be photographed or appear on television without infringing on a copyright, but it may mean that your tattoo can’t appear without the artist’s permission in a videogame, on an action figure, or in a parody. ”I’m not saying I own their skin,” says Escobedo, “but I am the artist and the creator” (Boudway)

While Escobedo, the artist that filed suit with regards to a UFC licensed video game, is incorrect with regards to parody, which would be considered fair use under the current copyright statute, it is likely true that it would be a challenge to come up with a use that was a true parody, rather than an exact reproduction.

While the NFLPA may not take these suits seriously, “defendants are leery of letting these claims get before a jury because the damages could be costly” (Boudway). According to Boudway, Bradley believes that “As long as the artist has taken the step of registering his copyright, he is eligible for statutory damages. It doesn’t matter, in other words, whether the infringement actually cut into sales” (Boudway). This is, in part, why the Hangover 2 settlement seemed to have come to fruition so quickly. Bradley says, “With The Hangover, they were really panicking…because there are posters and advertising, too” (Boudway). Escobedo argues that his art is especially worthy of copyright; “I don’t see the difference with my custom mark that was way harder to do in someone’s skin than it is on a computer or a piece of paper” (Boudway).

THE PROCEEDINGS RELATED IN PARTICULAR TO MIKE TYSON’S INSANE FACE TATTOO IN HANGOVER 2, PLUS, WHAT IT MEANS THAT THEY PUT IT ONTO ED HELMS’ FACE TOO

So the big story here is obviously the blockbuster movie that didn’t seem to hit a single roadblock in this matter, despite the tremendous publicity that featured a body artist’s work.In 2011, the matter of tattoo copyright came up with the release of the film Hangover 2. Mike Tyson, with a large facial tattoo, is featured prominently in the film. Tattoo artist, S. Victor Whitmill, designed and executed the tattoo, which he has titled “tribal tattoo” (Cohen). Whitmill petitioned the District Court of St. Louis for an injunction against Warner Brothers that would prohibit them from using the tattoo in the film (Cohen). The suit states “Mr. Whitmill has never been asked for permission for, and has never consented to the use, reproduction or creation of a derivative work based on his original tattoo” (Cohen). Warner Brothers dismissed the suit as frivolous, but still suggests that the film’s portrayal of an identical tattoo on the face of a character played by actor Ed Helms constitutes fair use (Cohen).

According to Christopher Harkins, a copyright expert interviewed by the New York Times, “issues like how central the tattoos is to the plot, how much of the film it is in and whether it is shown in a non-parody context were the kind of factors a judge would consider when determining if ‘fair use’ was in play” (Cohen).

The judge in the case, Catherine D. Perry, rejected the request for the injunction. However, Perry did not agree with the argument that this was a silly lawsuit; in fact, she said that. “most of the arguments put forward by Warner Brothers were ‘just silly’” (“Tattoo”). She stated that Whitmill had a “strong likelihood of prevailing on the merits for copyright infringement” (“Tattoo”). Perry went so far as to say, “Of course tattoos can be copyrighted. I don’t think there is any reasonable dispute about that” (“Tattoo”).

Warner Brothers asserted that claiming copyright on a tattoo that has been applied to a person is akin to claiming copyright on that person’s face. Perry dismisses that defense, saying that a person with a tattoo cannot easily change it, but that the design of a tattoo is “entirely consistent with the copyright law” (“Tattoo”). Further, “with the tattoo’s use in the movie or promotional items like movie posters, iPhone apps or Big Gulp cups at 7-11, Mr. Whitmill has ‘lost control over the image he created,’ Judge Perry ruled” (“Tattoo”).

In the end, Perry asserted that enjoining the studio from releasing Hangover II would cause more harm to the “public interest” than allowing it to go forward with the copyright infringement (“Tattoo”). Perry found that Whitmill would be entitled to compensation regardless. According to the judge, “although the intangibles he’s losing can’t be completely known or quantified, there is some amount of money that will come close” (“Tattoo”). The remainder of Perry’s statement was extremely favorable to Whitmill’s interests. She determined that the use of an “exact copy” of the tattoo does not qualify as parody, as “the use of the tattoo did not comment on the artist’s work or have any critical bearing on the original composition. There was no change to this tattoo or any parody of the tattoo itself. Any other facial tattoo would have worked as well “ (“Tattoo”). As lawyers for Whitmill stated, “Judge Perry recognized copyright law protects tattoos and that Warner Bros. has no permission to use Mr. Whitmill’s artwork in the movie” (“Tattoo”).

Ultimately, Whitmill settled with Warner Bros. for an undisclosed amount (“Tattoo”). Though there has yet to be a trial that codifies the argument that tattoos are copyrightable art into the common law, so far everything emerging from the courts suggests that body art falls into the category of visual art, in the same way that ink on a canvas would. However, copyright expert Timothy Bradley believes, “these [cases] will keep popping up and getting paid off” (Boudway).

BRIDGET WOODBURY (AND MAYBE SOME BACK-UP EXPERTS) JUST ANALYZING THE HELL OUT OF ALL OF THIS

So we’ve established that tattoos are art. I take my body art pretty seriously, as do all of the tattooers I’ve come into contact with, but there are industries that tend to find ink a little less impressive. Why should they be paying attention to this?

This seemingly superficial and informal segment of the arts community has ramifications for sectors of the business world that seem to be entirely unrelated to tattooing. The case of The Hangover 2, in particular, shows the breadth and diversity of effects that a violated tattoo copyright can cause. From major fines to full injunctions against production, a violated copyright of the manner could have serious economic effects. While the judge in this instance found that stopping the imminent release of the film would cause too much harm to the public good, this was the first statement of its kind about tattoo copyright. As it becomes part of the common law, judges may well become more stringent about enforcing these copyrights. Tattoo artists put anywhere between hours and days into the creation of a design and the transfer of this design to an applicable form. While it makes sense for a smart client to seek license to include their body art in any publicity, it also makes sense that a body artist would seek recognition with for their work.

Complexities in this area may arise in the case of a joint design or a customer design transferred to a tattooable image by an artist. Tattoos are frequently extremely personal to the wearer and the debate over who owns what could easily become heated. While it seems unlikely that the tattooer and the tattooee would sit down to draft a collaborative agreement, it certainly is not out of the realm of possibility that the standard waiver that accompanies any body modification might start to include an agreement about who owns what.

Despite the fact that corporations and possible plaintiffs seem to feel confident in their positions, body art as copyrightable art is well on its way to achieving validation through common law. This form of expression, often considered a symbol of a counter-culture or a rebellion against authority figures, looks to have ‘the man,’ or at least the law, on their side and it seems tattoo artists have come to an agreement with the judicial system— as far as this matter is concerned.

Citations after the jump.

Works Cited

Boudway, Ira. “Hey, Pro Athletes: Your Tattoo Is Going to Get You Sued.”